It is necessary to resolve the objection about maintainability of this Constitution Petition. The objection raised is, that the petitioner had an alternate remedy.
2. Respondents Nos.2 and 3 were employees of petitioner Ahmed Spinning Mills Limited. They claimed wages from the petitioner Mill for the period March 1984 to 15-8-1984, in an application under section 15 of the Payment of Wages Act, moved before the Authority under the said Act. The application was opposed by the said Mill which filed written statement. Under an order, dated 7-11- 1985 the authority accepted the application and directed the Mill to deposit in Court within thirty days an amount of Rs,17,990 for the respondents Nos. 2 and 3. Said order is impugned in this Constitution Petition.
3. I have heard Mr. S. Fasahat Hussain Rizvi Advocate for the petitioner and Mr. M.M. Aqil counsel for the respondents Nos. 2 and 3.
4. Learned counsel for the petitioner argued that the petitioner had invoked Constitutional jurisdiction of this Court because for filing an appeal under section 17 of the Payment of Wages Act he had to deposit with the appellate Court a huge amount and hence the relief available in the appellate Court was not "efficacious and adequate remedy". In the alternative learned counsel for petitioner contended that the petitioner can invoke Constitutional jurisdiction under Article 199 of the Constitution, even if the alternate remedy was available. In support learned counsel for the petitioner cited (i) case of Abdul Hamid v. D.C. and others 1985 SCMR 355; (ii) case of Site Ltd. v.
C.B.R. and others PLD 1975 Kar. 128, (iii) case of S.E.SS. I. v. Govt. of Sind and others 1980 PLC 476, (iv) case of Shaista Estates Ltd. v. Karachi Building Control Authority etc. 1986 MLD 2987, (v) case of Lal Muhammad v. Gul Bibi and others 1986 CLC 1033 and (vi) case of Al-Haj Noorul Zaman v. Azad J&K Zakat Council PLD 1987 AJ&K 119.
5. In (i) above, the Supreme Court of Pakistan while reiterating its view expressed in the case of Murree Breweri v. Pakistan PLD 1972 SC 279 observed that the rule that the High Court will not entertain in writ petition when other appropriate remedy was available", was not a rule of law barring jurisdiction but was a rule by which the Court regulated its jurisdiction. This was an election matter, where an objection was taken that the question raised in the writ could be raised in an election petition. In view of peculiar circumstances in the cited case, the Supreme Court of Pakistan observed that it would be out of time and out of place to call upon the appellate Authority to redecide the issue. Hence the Supreme Court while granting the petition observed that the jurisdiction should have been exercised by the High Court to relieve the party of the illegalities and infirmities appearing on the face of the record. In(ii) above it was observed by Sind High Court that if impugned act is without jurisdiction altogether, it is not incumbent upon the petitioner to avail of other remedies provided to him by law. Similar view was taken by this High Court in (iii) above. In
(iv) above, the Building Control Authority issued to the petitioner no objection certificate for commercialisation of his plot and subsequently suspended the letter of commercialisation. In the circumstances it was observed by a Division Bench of this High Court that the vested rights had accrued to the petitioner who was granted no objection certificate and who had not violated any of the terms and conditions and who had demolished the previous structure after seek.ng permission and the such vested rights could not have been taken away unless the official respondents had requested the competent authority for the same. In the circumstances the writ petition was accepted although the petitioners could approach the competent authority under section 16 of the Sind Building Control Ordinance. In the instant case the impugned order has determined liability of the petitioner. It has not taken away any vested right having accrued to the petitioner. In (v) above it was observed that jurisdiction under Article 199 can always be invoked to rectify wrong and injustice occasioned to a party, when finding of fact is based on no evidence at all or proceeds in ignorance of material evidence or consideration of inadmissible evidence. These observations were made in a matter where a decree for dissolution of marriage was challenged. In cited case the petitioner had no alternate remedy. In (iv) above it was observed that if scope of the remedies sought in the writ petition was totally different from the scope of the remedies sought in a civil suit, then the writ petition cannot be said to be incompetent and unmaintainable in presence of the civil suit. In cited case removal of a person from the post of Chairman District Zakat and Ushr Committee was challenged.
6. Learned counsel for the respondents Nos. 2 and 3 argued that the writ petition was not competent because adequate remedy was provided by law in the shape of section 17 of the Payment of Wages Act. Learned counsel argued that the money ordered under section 15 of said Act to be deposited by petitioner, was deposited in the High Court, and that the remedy available under section 17 of the Act was efficacious. Learned counsel for the respondents Nos. 1 to 3 cited (i) case of Divisional Supdt. P.W.R. v. Bashir Ahmad PLD 1973 SC 589; (ii) case of Divisional Supdt.
P.W.R. v. Muhammad Aslam and others 1986 SCMR 1607; (iii) Case of Manzoor Ahmed v. Civil Judge 1985 SCMR 570; (iv) case of Muhammad Fazil v. Commissioner P.W. Act PLD 1974 Kar. 43;
(v) case of Rahimullah v. Alamgir Weaving Factory and others 1987 PLC 554; (vi) case of Atique Rehman v. Muhammad Ibrahim and others PLD 1983 SC 182; (vii) case of M/s. Ghafoor Textile Mills v. Fazal Imam PLD 1981 Kar. 394 and (viii) case of Muslim Commercial Bank v. Ubedullah and others 1987 PLC 692.
7. In(i) above it was held that a suit for declaration of dismissal as illegal and for recovery of arrears of salary by a Railway employee was competent. This case is not helpful to the respondents. In(ii) above the workers' application under section 15 of Payment of Wages Act was allowed but in appeal the matter was remanded and the workers challenged remand order in the Constitution Petition which was allowed. The Supreme Court of Pakistan recalled the writ after observing that section 17 of the Payment of Wages Act on which the judgment of the High Court was based, mentioned only the period within which the amount was to be deposited and did not mention that such amount was to be deposited before filing of the appeal. No such point has arisen in the instant case. In cited case it was argued before the Supreme Court of Pakistan that adequate and efficacious remedy was available in the lower Court and the writ was not competent in the High Court. No finding was given on such contention. In (iii) above it was observed that if adequate alternate remedy was available, the High Court was not to exercise the Constitutional jurisdiction.
In (iv) above, the point arose whether the provisions making deposit of money a condition precedent to the maintenance of an appeal under section 30 of the Workmen's Compensation Act (which was identical to section 17 of the Payment of Wages Act was destructive of the efficacy of the remedy by way of an appeal. Dealing with this point his Lordship Mr. Justice Tufail Ali Abdul Rehman (the then Chief Justice) observed as follows:-- "In effect the proviso makes the deposit of the money a condition precedent to the maintenance of the appeal and learned counsel's argument was that his client was too poor to pay the amount in question first and that, therefore, while it may not be a principle of general application that such a condition precedent destroys the efficacy of the remedy by way of an appeal, in this particular case it did have that consequence. Now to start with I am at least doubtfv.- whether it is possible to hold that such a condition will not take away from the adequacy of the remedy provided by law, within the meaning of Article 98, generally, but it is yet possible to say in a given individual case .that the financial condition of the petitioner is such that it ought to be so held in that particular case. After all the expression used must be interpreted as so to make the rule applicable to all cases and it can hardly be made dependant upon the actual condition of the petitioner."
After considering various authorities cited before him Mr. Justice Tufail Ali Abdul Rehman observed that the writ petition was not maintainable because of the alternate remedy of appeal although such appeal was conditional on deposit of the amount directed to be deposited by the Commissioner Workmen's Compensation. This authority contains complete answer for the argument advanced on behalf of the petitioner that he had no alternate remedy in the Labour Court because of the condition to deposit in that Court the entire amount covered by the impugned order, before filing an appeal under section 17 of the Payment of Wages Act. Id (v) above it was held by a learned Single Judge of this Court that merely because the authority under the Payment of Wages Act and the appellate authority came to a wrong conclusion of fact, cannot provide a ground for challenging their orders in a Constitution petition. In (vi) above it was observed that if alternate remedy under Civil Procedure Code was available the Constitution petition was not competent. In (vii) above it was observed that an appeal under section 17 of the said Act being adequate remedy, the petition under Article 199 of the Constitution of Pakistan was not maintainable.
8. Intention of the Legislature in enacting section 17 of the Payment of Wages Act is very clear. It seems that the Legislature intended the amount covered by an order under section 15 of said Act to be deposited in the Labour Court before it entertained an appeal against such an order. Such a provision cannot be allowed to be circumvented. Moreover purpose of Article 199 of the Constitution of the Islamic Republic of Pakistan does not appear to be to nullify the effect of a legislative provision or to make ineffective a statutory provision.
9. Authorities cited on behalf of the petitioner do not cover this case. In the case of Abdul Hamid the appellate authority had already dealt with the matter and it was not considered proper to call upon the appellate authority to redecide the matter where illegalities and irregularities were patent on face of the record. In the instant case the jurisdiction of Authority to pass an order under section 15 of the Payment of Wages Act is not challenged and hence this case is not covered either by case of SITE v. C B R or by case of Sessi v. Govt. of Sind. In case of Shaista Estates there was suspension of commercialization certificate which was earlier granted. In the instant case there was no recall of any order. In the present case the impugned order was not alleged to be without jurisdiction or to be based on no evidence and hence it is not covered by the case of Lal Muhammad where a decree for dissolution of marriage was challenged. Case of Noorul Zaman is inapplicable to present case, which was not alleged to be barred by any pending suit.
10. Case of Ghafoor Textile Mills cited from the side of respondents Nos. 2 and 3 applies to this case on all fours. So also the case of Muhammad Fazil. Above discussion leads one to an irresistible conclusion that present Constitution petition is not maintainable in law, in view of section 17 of the Payment of Wages Act. The same stands dismissed.